R v Merrett, Piggott & Ferrari [2007] VSCA 1

R v Merrett, Piggott & Ferrari [2007] VSCA 1 - VSCA 2007 case summary — Zoe

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1 Some time after 4:30 pm on 16 June 2001, a Mitsubishi tray truck was stolen from a locked yard in Blackburn. A pair of bolt cutters was used to gain access to the yard. Shortly after 9:00 pm that evening, a bobcat parked at a work site in Kew was loaded onto the stolen truck, and taken to a property in Warrandyte. The movement of the bobcat triggered a tracking device, and police were notified. They attended at the Warrandyte property and, soon after, intercepted the applicants driving a white van away from the property. The police searched the property and located the stolen truck and bobcat parked nearby.

2 On 5 June 2006, a County Court jury found each of the applicants guilty of two counts of theft (of the truck and the bobcat respectively). Each applicant was sentenced to three years' imprisonment on each count. In each case it was ordered that one year of the sentence on the second count be served cumulatively on the sentence on the first, giving a total effective sentence of four years' imprisonment. In each case, the non-parole period was fixed at two and a half years.

3 The first applicant ("Merrett") seeks leave to appeal against conviction and sentence. The other two applicants ("Piggott" and "Ferrari") seek leave to appeal against sentence only. I will deal first with the appeal against conviction.

The alibi defence

4 The grounds of appeal against conviction concern what are said to be errors in the directions given to the jury concerning the defence of alibi, as to which only Merrett gave evidence but on which all three applicants relied. Before considering the detailed grounds, it is necessary to describe in more detail the sequence of events.

5 The Warrandyte property at which the stolen vehicles were found belonged to one Ernie Yarra. Yarra was known to Merrett. Previously, by arrangement with Yarra, Merrett had on several occasions stored at Yarra's property vehicles used by Merrett and his father in their bricklaying business.

6 In his evidence,[1] Mr Yarra recalled having received a telephone call from Merrett at about 8:00 pm on the evening of 16 June 2001. Merrett said that he had not seen Yarra for a while and "might pop up and have a drink". (At the time of the telephone call, according to Merrett and other witnesses,[2] Merrett was having dinner at a hotel in Fairfield.) After he received the phone call from Merrett, Mr Yarra unlocked the padlock on his gates so that Merrett would be able to drive in. He then went to his bedroom to watch TV, at some time between 8:30 and 9:00 pm. He did not hear anything further until about 10:40 pm, when he saw that police were in attendance at his property.

7 The relevant chronology is as follows:

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His Honour later repeated that each of the applicants was "affected by the delay that has taken place", but did not elaborate.[40]

38 With great respect to his Honour, I am unable to find, either in the sentencing remarks or in the sentences imposed on the applicants, any indication that the extraordinary delay was recognised, or treated, as being "a powerful mitigatory factor" in their favour. This may be because, although his Honour recorded the submissions made on behalf of each applicant about the delay, he expressed no conclusion of his own about their conduct over the intervening five years - or their evident rehabilitation. Likewise, he noted the delays, but expressed no view about them.[41]

39 It is hard to imagine a more powerful case based on delay than Merrett's. His record was unblemished throughout the period of five years between the offending and the sentencing; he had continued in employment in the family business until suffering an injury which required surgery in 2004; and he had strong references about his support for charitable work. Aged 27 at the date of the offending, he was 32 when he came to be sentenced, and his counsel was legitimately able to submit that he had been "probably quite a different person in 2001 than he is as a person today in 2006 when he has matured greatly and committed no further offence."[42]

40 The delay considerations were hardly less compelling in relation to Ferrari and Piggott. Ferrari also had an unblemished record over the five years between the thefts and the sentencing. He had spent 20 months of that period in prison (having been sentenced in December 2001 for an earlier, unrelated, offence), but had not offended in the almost three years following his release. As the Judge noted, Ferrari had a long criminal record. He had appeared in court 16 times in the period 1972-2001; he had convictions for dishonesty (1978, 1993) and repeated convictions for driving offences. Following his release from prison in August 2003, however, he resumed a relationship, and worked during the week for the Merrett bricklaying business. He would return at weekends to Colac where his partner lived. In short, Ferrari had significantly rehabilitated himself in the post-release period of almost three years.

41 Piggott also had a bad criminal record. He was convicted of dishonesty offences on four separate occasions in the period 1998-2001. The last of these resulted in a sentence of nine months' imprisonment, imposed in November 2002 for a theft committed in September 2001, shortly after the thefts the subject of the present applications. Piggott served the nine months, together with three months for breach of an earlier suspended sentence for dishonesty offences, and was released in November 2003.

42 But, like Ferrari, Piggott could point to a lengthy period during which he had not offended. In the period September 2001-June 2006, a period of some 57 months, he was at liberty for 45 months, and committed no offence. Particularly impressive, in view of his record of serious criminal offences, was the crime-free period between his release in November 2003 and the sentencing in June 2006, a period of more than two and a half years.

43 His counsel was able to point to a number of significant changes in his life. In 2005, his daughter was born; he gained employment (which was continuing at the time of the sentencing); and he brought to an end a destructive relationship -

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44 The matters to which I have referred were very significant mitigating considerations, but they appear to have been given almost no weight. The learned Director conceded as much - quite properly, in my view. The Director acknowledged that it was most significant that none of the applicants had re-offended during the intervening years. As he acknowledged, this would hardly have been predicted given their respective criminal records.

45 It follows, in my view, that the sentencing discretion miscarried. In the Director's submission, had proper weight been given to these matters of delay and - critically - rehabilitation, this would have been reflected in both the orders for cumulation and in the non-parole periods fixed. In re-sentencing, I propose to take that course. In my opinion, the head sentence of three years on each count is appropriate but I would order that the sentences be served concurrently, giving a total effective sentence of three years. I would direct that the non-parole period in each case be 18 months.

46 Argument was advanced on behalf of both Merrett and Ferrari that their respective criminal records were not as bad as Piggott's and that this should be reflected in the sentences imposed. Merrett, in particular, argued that his record was materially better than that of either co-accused. The Director argued that there was no material distinction between them, alternatively that the only relevant distinction was between Merrett and the other two.

47 The Director submitted - and I respectfully agree - that the task for a sentencing judge is exceptionally difficult when the question of parity involves comparing different criminal records. It is not, of course, possible for the sentencing judge to know the circumstances of the prior offending, beyond such brief details as might be given by defence counsel on the plea. Typically, the judge knows only the date of sentence, the offence(s) and the sentence(s) imposed.

48 In the present case, the Judge concluded that he could not see any -

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Cases Cited (4)